Defendant, Beaver Falls Municipal Authority, has presented a petition pursuant to section 11 of the Arbitration Act of April 25, 1927, P. L. 381, sec. 11 (No. 248), 5 PS §171 (hereinafter referred to as the Arbitration Act). asking that the court make an order modifying an arbitrators’ award entered in favor of plaintiff, Remsco Associates Inc. Plaintiff filed an answer to defendant’s petition and, following the filing of written briefs and oral arguments by counsel, the matter is before us for disposition.
On September 28, 1967, defendant, as owner, entered into a written contract with plaintiff, as one of the prime contractors, for the mechanical work in connection with the construction of a water filtration plant. In addition to plaintiff’s contract, there was a general contractor and four other prime contractors. Plaintiff’s contract provided that all work was to be completed within 365 consecutive calendar days following receipt
Although paragraph 46 of the “general conditions” of the contract, which provides for arbitration, states that the award of the arbitrators “shall be final, binding and conclusive upon all parties without exception or appeal,” both parties agree that the Arbitration Act is applicable and the court may review the award in accordance with the terms of the act. Section 16 of the Arbitration Act of April 25, 1927, P. L. 381, 5 PS §176, provides that it is applicable “to any written contract to which the Commonwealth of Pennsylvania, or any agency or subdivision thereof, or any municipal qor
The scope of our review is set out in section 11 of the Arbitration Act as follows:
“In either of the following cases the court shall make an order modifying or correcting the award upon the application of any party to the arbitration:
“(d) Where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.
“The court may modify and correct the award or submit the matter to the arbitrators”: 5 PS §171.
In the case of McDevitt v. McDevitt, 365 Pa. 18 (1950), at page 21, the court said:
“But in the present instance it seems to be agreed by both parties that the arbitration under the partnership agreement was to be governed by the Act of April 25, 1927, P. L. 381; that Act provides (section 11(d)) that the court shall modify or correct the award upon the application of any party to the arbitration where the award is against the law and is such that had it been a verdict of the jury the court would have entered a
We are required to draw all inferences of fact in favor of plaintiff since it has received the award of the arbitrators: Pa. Turnpike Commission v. Smith, 350 Pa. 355 (1944).
Defendant’s contention is that the contract between the parties provides that the sole remedy available to plaintiff for a delay in the work was an extension of time. This argument is based upon paragraph 39 of the “General Conditions” of the contract, which reads as follows:
“If the Contractor is delayed at any time in the progress of the work by any of the following, the time of completion shall be extended for such reasonable time as the Engineer decides.
“(a) By any act or neglect of the Owner or the Engineer or an employee of either.
“(b) By any separate Contractor employed by the Owner.
“No such extension shall be made for a delay occurring more than seven (7) days before claim therefor is made in writing to the Engineer.”
Defendant cites the case of Henry Shenk Co. v. Erie Co., 319 Pa. 100 (1935), in support of its contention. In that case, the court held that plaintiff-contractor’s sole remedy was an extension of time and he was not entitled to monetary damages for delay in completion of the contract. That contract contained a provision which was practically identical in all material respects with paragraph 39 of the “General Conditions” in the contract now before us. In the Shenk case the court said, at pages 103-06:
“The contract contained a provision relative to delays by the acts or neglect of the owner, architect, or other contractor or for any delays incident to the work. The rule relative to delays in the prosecution of work by an act or neglect of the owner, architect, or other contractors, or changes in the work and damages for wrongful acts or neglect has been thus stated. In construction work, an owner does not generally guarantee or indemnify against loss occasioned by the delays of independent contractors connected with the work which may be reasonably anticipated. The owner fulfills his duty when he selects as contractor a person generally known as responsible. Where contracts contain a provision against delay of other contractors or other incidents of the work, which provide in substance as this one does for no liability on the part of the owner for delays of contractors or changes in the work, such provision includes delays of other contractors in connection with the w^rk, or delays which are covered by the contract or reasonably anticipated from the cir
“Where a party under a delay and time extension provision on entering a contract foresees or should foresee that the work might be delayed by the failure of the owner or another contractor to perform, ‘the remedy therefor ... [is an] extension of time on the part of those who perform the work, and the presumption arises that this was intended to measure the rights of the contractor thereunder.’
“The general rule as to affirmative or positive acts is that where they materially interfere with the forwardness of the work, or cause other damage, the owner is hable', or as to negative action where the execution of such contract is dependent upon something essential, which is to be performed by the owner, the default of the owner for an unreasonable time, resulting in damages to the contractor, may render the owner hable for such damages.
“While it is true the contract must be regarded as furnishing the exclusive measure of compensation for the work done or damages suffered, actual damages apart from it which result from the employer’s acts or failures should not fall on the contractor. It may be stated as a general rule that where an owner by an unwarranted positive act interferes with
In the Shenk case, the court found that there were two distinct and separate categories of delay. In one, the delay was caused by the failure of other contractors on the job to perform and certain acts of the architect which delayed progress of the work. The other category of delay was that caused by the county commissioners’ failure to promptly let, and obtain court approval of, contracts for other necessary portions of the work. The Supreme Court held that neither of these types of delay rendered the county liable. The court pointed out that the county, as owner, had not taken any affirmative steps to cause the delay of the other contractors or the action of the architect. Likewise, in the case of Emporium Area Joint School Authority v. Anundson Construction and Building Supply Co., 191 Pa. Superior Ct. 372 (1959), reversed on other grounds, 402 Pa. 81 (1960), the Superior Court held that the joint school authority could not be held liable for delays in completion of construction, which delays were caused by actions of other contractors, the architect and the job inspector. We are of the opinion that the Shenk case and the Emporium case control the factual situation presented by the record in the case before us. Considering the record in the light most favorable to plaintiff, it appears that the delay in completion of the work was due to the failure of the general contractor and the project engineer to promptly and efficiently schedule and coordinate the work of the various crafts and contractors so as to complete the work on
Plaintiff relies on the case of Johnson v. Fenestra, Inc., 305 F. 2d 179 (1962). That case involved a claim by a subcontractor against the prime contractor for damages resulting from a delay by the prime contractor in furnishing proper materials which were to be erected by plaintiff-subcontractor. It is to be noted that defendant in that case was not the owner, but was rather a prime contractor. Defendant in that case, not being a public authority, the rule that the contract must be interpreted in favor of the public does not apply. In addition, it appears from a reading
Although not cited by counsel in this case, the Supreme Court considered this problem in Gasparini Excavating Co. v. Pa. Turnpike Commission, 409 Pa. 465 (1963). In that case, the arbitrators and the trial court refused the contractor’s claim for damages said to have resulted from a delay in performance of the contract. Those decisions were based upon a provision in the contract which specifically provided that no damages would be allowed for such delays. The Supreme Court reversed and held that the contractor was entitled to damages. However, the Supreme Court, in its opinion, pointed out that defendant-owner had actively interfered with the contractor’s work by denying the contractor access to the work area which was occupied by another contractor at the time defendant issued its order to proceed with the work. In the case before us, there was no such active interference and at no time did defendant-owner deny plaintiff access to the work area. In its opinion, in the Gasparini case, the Supreme Court characterized the conduct of defendant-owner as coming within the exceptions pointed out in the Shenk case where there has been an affirmative or positive interference by the owner apart from the contract or the failure to act in some essential matter which was necessary to complete the work properly. On the record before us, however, the conduct of defendant-owner does not fall within either of those two exceptions.
Plaintiff argues, however, that coordination of the work between the various parties was critical to the time of completion and that time of completion was
For these reasons, we are of the opinion that plaintiff’s sole remedy under its contract with defendant for the delays in construction encountered on this project was to obtain an extension of time. For this reason, we are of the opinion that the majority of the arbitrators made an error in law in awarding damages to plaintiff.
ORDER
Now, May 8, 1973, defendant’s petition to modify the arbitrators’ award is granted. The award of the arbitrators is modified by striking therefrom the award of damages to plaintiff, against defendant, in the amount of $32,000 for delay of construction.
All three arbitrators joined, however, in awarding plaintiff interest on the final payment made by defendant to plaintiff under the contract. This award of interest has not been challenged by defendant, either in its written brief or at oral argument.
